United Keetoowah Band celebrates historic decision in homelands case
Monday, September 9, 2019
By Acee Agoyo
The United Keetoowah Band of Cherokee Indians can acquire homelands in Oklahoma over the objections of a much larger and more politically engaged tribe, a federal appeals court ruled in a decision being hailed as historic.
By a unanimous vote, the 10th Circuit Court of Appeals last Thursday determined that nothing in federal regulations or treaty law bars the United Keetoowah Band from asserting sovereignty over a 76-acre site in Tahlequah, in the northeastern part of the state. The city happens to be the headquarters of the Cherokee Nation, whose leaders opposed the move.
The Cherokee Nation, however, failed to make its case under federal laws or under an 1866 treaty, according to the 10th Circuit. The tribe's consent is not required before the Bureau of Indian Affairs places the land in trust, a panel of three judges concluded in the September 5 decision.
"The 1866 treaty does not grant the Nation the power to veto the UKB’s land-into- trust application," Judge Allison H. Eid wrote in the 34-page ruling.
Additionally, the court determined that the United Keetoowah Band is not required to prove that it is an "Indian" tribe, as that term is defined by the Indian Reorganization Act. Rather, the Oklahoma Indian Welfare Act already authorizes the Secretary of the Interior to take land into trust for the tribe, Eid observed.
"Because it is undisputed that the UKB is a 'recognized tribe or band of Indians residing in Oklahoma,' that has incorporated pursuant to OIWA, the BIA properly concluded that statutory authority exists for the Secretary to take the subject parcel into trust for the UKB Corporation," wrote Eid, whose nomination to the appeals court -- one of the most significant in the nation -- was seen as favorable to tribal interests.
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The decision represents a major turnaround for the United Keetoowah Band, whose operations are much smaller than its sister Indian nation in Tahlequah. The contested land-into-trust application went through a series of rejections and administrative appeals before the BIA finally approved it during the Obama administration.
“We want to thank the Lord for answering our prayers, no doubt about it,” said UKB Chief Joe Bunch, who described the decades-long process as an "ordeal" for his people at a press conference last Thursday.
"It's been 69 years since the beginning of our federal recognition," Bunch added, alluding to a key issue that was considered by the 10th Circuit. "It's been a long time coming."
"We've been called various names throughout the time -- at one time ... an 'error' in the Federal Register, and even so far as calling us a 'foreign' federally recognized tribe," he continued.
"But today we're the United Keetoowah Band of Cherokee Indians," Bunch asserted.
The tribe is already using the 76-acre site for a museum, elders center and cultural grounds, along with providing services to its community. Future land acquisitions will help the tribe meet the needs of its people through economic development, housing and other efforts, Bunch said.
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Meanwhile, the Cherokee Nation, which just welcomed a new set of leaders, was "carefully considering further legal options," according to a statement. That could include asking the 10th Circuit to rehear the matter or even going to the U.S. Supreme Court, where tribal interests have been on a long losing streak.
"Nothing in the court’s decision changes the Cherokee Nation’s governmental authority within the reservation boundaries, or alters the long-standing treaties that bind the Cherokee Nation and the United States," said Cherokee Nation Attorney General Sara Hill, who took office late last month following the inauguration of Chuck Hoskin Jr. as the 18th elected principal chief of the tribe.
In one of his first actions as leader of the largest tribe in the U.S., Hoskin invoked a promise that was reaffirmed by the 1866 treaty at issue in the homelands case. On August 22, he appointed Cherokee citizen Kim Teehee as the tribe's first delegate to the U.S. House of Representatives.
"Whether it is making good on our treaty rights to a Congressional delegate, meeting its trust responsibility for our health programs or consulting with our government as mutual sovereigns, my proposition to the government of the United States is simple: Keep your word," Hoskin said in the announcement.
The Cherokee Nation subsequently confirmed Teehee's nomination as the delegate. While the U.S. Congress has yet to recognize her appointment, some prominent lawmakers are ready to work with her in the new government-to-government role.
"Our country has a painful history of mistreating Native Americans," Sen. Cory Booker (D-New Jersey), a 2020 Democratic candidate for president, said in an August 26 post on social media.
"I applaud the Cherokee Nation for taking a step toward justice by appointing its long-promised delegate to the House," said Booker, whose presidential campaign anticipates an announcement of an Indian platform following the release of an climate change and environmental justice plan that embraces several Indigenous priorities.
"Kimberly Teehee is an exceptional public servant & we’d be lucky to have her voice in Congress," Booker concluded in his post.
Our country has a painful history of mistreating Native Americans. I applaud the Cherokee Nation for taking a step toward justice by appointing its long-promised delegate to the House. Kimberly Teehee is an exceptional public servant & we’d be lucky to have her voice in Congress. https://t.co/e254p5xNQz
The United Keetoowah Band of Cherokee Indians descends from the same historic tribal entity as the Cherokee Nation. Its separate status was recognized by an act of Congress in 1946.
The law specifically recognized the United Keetoowah Band is a "band of Indians residing in Oklahoma" within the meaning of the Oklahoma Indian Welfare Act of 1936. The earlier law authorizes such tribes to follow the land-into-trust process in order to restore their homelands in the state.
The Cherokee Nation, however, cited the 1866 treaty as a barrier to the United Keetoowah Band. The tribe believed that the agreement, which promises the support of the U.S. in connection with "domestic feuds and insurrections” and “hostilities of other tribes," required its consent before any other tribe acquires lands in its jurisdictional area covering 14 counties in northeastern Oklahoma.
A 1992 funding measure, as well as the BIA's land-into-trust regulations, also make reference to tribal consent in such situations. But the 10th Circuit concluded that Congress, in enacting an subsequent appropriations law, changed the requirement to one of mere consultation of the Cherokee Nation.
"Congress clearly intended the 1999 Appropriations Act to enact a substantive change in the requirements for taking lands within the original boundaries of the Cherokee territory into trust," a footnote in the court's decision stated.
After the BIA, during the Obama administration, embraced the change in law and approved the United Keetoowah Band's land-into-trust application, the Cherokee Nation went to court. In June 2017, Judge Ronald A. White ruled in the latter tribe's favor on all counts and threw in another hurdle to boot.
According to White, the BIA must consider the effects of the Supreme Court's decision in Carcieri v. Salazar on the United Keetoowah Band. The disastrous ruling states that a tribe must have been "under federal jurisdiction" in 1934 in order to follow the land-into-trust process.
Following an appeal by the federal government and the United Keetoowah Band, the 10th Circuit overruled White on all counts, from his view of the 1866 treaty and appropriations law to Carcieri .
Though the decision took a long time to formulate -- oral arguments in the case took place more than a year ago -- it bolstered beliefs in the Indian law experience of Judge Eid.
Eid was nominated to the 10th Circuit by President Donald Trump in June 2017. She was picked to fill the seat of Neil Gorsuch, who now serves on the nation's highest court and whose Indian
law rulings have been overwhelmingly positive.
“Her record on our issues is good as well,” John Echohawk, a citizen of the Pawnee Nation who serves as the executive director of the Colorado-based Native American Rights Fund, said at the time in comparing her favorably to Gorsuch.
Yesterday was a historic day for the tribe as we were granted land in trust! You can read all about yesterday's press...
Eid, who previously served on the Colorado Supreme Court and hired Maranda S. Compton (Delaware / Cherokee) as one of her clerks on that judicial body.
She is the spouse of Troy Eid who, during the George W. Bush administration, became the first sitting federal prosecutor to support the recognition of tribal
jurisdiction over non-Indians. As an attorney in private practice, he continues to call for the strengthening of tribal
justice systems.
Turtle Talk has posted documents from the tribal homelands case, Cherokee Nation v. Bernhardt
